From the onset of the COVID-19 pandemic, the Forum has provided a crucial resource for its members from around the state of Georgia. Advocates and attorneys met as often as possible to confer on their programs’ safety protocols because other domestic violence advocates would understand the need to balance the health and safety of their staff with the highly sensitive and emergent needs of their clients. Members also discussed their observations regarding how the pandemic affected domestic violence survivors specifically, noting that the eviction crisis, high unemployment, and criminal justice reform only complicated the already complex circumstances that survivors face. Crucially, the Forum also discussed the courts: how the legal system responded to the pandemic, to what extent these responses inadvertently exacerbated problems facing survivors, and how survivors could be better served in the future.
The purpose of this article is twofold: to provide some of the Forum’s substantive recommendations, for use by advocates, attorneys, and courts as a suggestion or tool for discussion; and to describe the Forum’s activities in hopes that this will encourage other practitioners to form similar groups in their own jurisdictions. This article will, in Part I, describe the civil protective order process in Georgia, for context; in Part II, describe the origins of the Forum and give examples of some of our key best practice recommendations pre-COVID-19; and in Part III, give a brief account of how COVID-19 changed Georgia, the courts, and civil protective orders from March 2020 to June 2021.2
Because Forum members are so entrenched in the practice of protecting abuse victims from violence, the observations and recommendations in this article will naturally be of a highly practical, not ideological, nature. A great deal of care and effort has gone into envisioning an achievable ideal protective order court, from the point of view of the survivor. We do intend for it to be concretely useful in some ways, particularly as so many courts have struggled with adjusting to post-COVID-19 procedures. More expansively, the Forum’s hope is that sharing these experiences will encourage other practitioners to form similar groups to improve their own practices and those of their local courts.
I. Georgia’s Civil Protective Order Process
Georgia civil protective orders are called temporary protective orders even when describing the “final” order in a case. The TPO process is laid out by statute.3 As the name implies, TPOs are generally time-limited, except in rare cases where a motion to make the order permanent is granted.4 TPOs in Georgia have four types: family violence, stalking, employer, and, as of July 1, 2021, dating violence.5 The work of this article’s authors focuses on family and intimate partner violence, and therefore the article will discuss primarily family violence and stalking TPOs. However, all types of TPOs have essentially the same filing process and procedure.6
A. The Statutory Scheme
When an individual petitions a Georgia superior court for a TPO, the petition is reviewed by a judge ex parte.7 If the sworn statements of the petitioner satisfy the burden of probable cause that family violence or stalking has occurred in the past and the petitioner needs protection, the judge may issue an Ex Parte Protective Order.8 Both the petition and the order must be served upon the respondent before the order is enforceable against the respondent.9 The ex parte order also serves as a hearing notice for a subsequent hearing, at which both the petitioner and the respondent have an opportunity to present evidence.10
At the second hearing, sometimes called a “30-day” hearing or “12-month” hearing, a judge determines whether the petitioner has proven the allegations of the petition by a preponderance of the evidence.11 This hearing must take place “within ten days of the filing of the petition . . . or as soon as practical thereafter, but not later than 30 days after the filing of the petition.”12 If the judge issues an order after this second hearing, it can last a maximum of 12 months, but it can be extended past 12 months upon motion, notice to respondent, and an additional hearing.13 Although no-contact and stay away provisions are generally considered the foundation of these orders, the 12-Month TPO can address a wide variety of matters designed to “bring about a cessation of acts of family violence,” including child custody, temporary possession of a residence or vehicle, child or spousal support, and attorney fees.14
B. Legal Advocates
Georgia victims of family or intimate partner violence do not have a right to counsel. However, throughout the state, domestic violence agencies have specially trained staff known as “legal advocates” who are specifically authorized to assist victims.15 Legal advocates are not lawyers, but they are able to advise petitioners on the forms, pleadings, and presentation of their case to the court.16 Because legal advocates are also employed by a domestic violence agency, they receive extensive, regular training on working with victims of trauma, the cycle of violence, safety planning, and other areas that make them uniquely suited to provide holistic services to victims. While legal advocates cannot represent petitioners like a licensed attorney, they commonly accompany petitioners to hearings and assist victims and the court with a wide range of supportive services throughout the process. Because TPOs are by nature emergency cases, and victims of abuse commonly lack access to financial resources or family support by virtue of their abuse, an effective legal advocacy program is an essential part of a successful TPO process.17 “It is imperative all victims of domestic violence seeking relief from the courts be referred to a domestic violence advocate who can explore the potential risks associated with filing a TPO, conduct a risk assessment and safety planning, and offer additional resources and support.”18
II. Metro Atlanta TPO Forum and 2019 Best Practices
In 2018, advocates and legal services attorneys formed the Metro Atlanta TPO Forum (Atlanta Forum) in order to learn from one another’s courts.19 The original group included service providers from Clayton, Cobb, DeKalb, Fulton, and Gwinnett Counties—the five most populous counties in Atlanta.20 Participating organizations included Atlanta Legal Aid Society, Atlanta Volunteer Lawyers Foundation, DeKalb Volunteer Lawyers Foundation, liveSAFE Resources, and Partnership Against Domestic Violence.21
The Atlanta Forum spent nine months observing civil TPO court in each of the five counties.22 Where possible, Atlanta Forum members met with practitioners and/or judges in the local county, who entertained questions and feedback.23 All counties were highly cooperative and collaborative, which significantly improved the Atlanta Forum’s ability to access information and hear the court’s own responses to any questions or thoughts.
Subsequent discussions were always spirited, and gradually, some points of near-universal agreement began to emerge, and a set of best practices for civil TPO courts was the natural product of the Atlanta Forum’s meetings.24
A. 2019 Best Practices Manual
The Best Practices Manual (Manual) is a series of recommendations for processes and procedures that the ideal protective order court, and community stakeholders, would use. The Manual was created and presented to the annual conference of the Georgia Commission on Family Violence in September 2019.25 The Atlanta Forum made the recommendations based on their collective commitment to provide a fair judicial experience for all parties while ultimately ensuring the safest possible legal environment for victims of domestic violence. The Atlanta Forum aspires that the Manual be used as an advocacy tool to help domestic violence prevention attorneys and advocates improve their local court processes so that domestic violence and stalking survivors are better and more equitably served across Georgia.
In 2012, the Battered Women’s Justice Project of the National Center of Protection Orders and Full Faith & Credit produced a guide for engaging in a best practices assessment of civil protective order systems.26 This guide lists eight principles that should underlie protective order processes and procedures in any jurisdiction seeking to increase victim safety and offender accountability regardless of the size of the jurisdiction and the resources available. These principles are safety, autonomy, accessibility, competence, reliability, collaboration, culture/diversity, and community engagement.27 The assessments that led to these recommendations were guided by these principles.28
In total, the Manual studied nearly 20 different elements of the protective order process.29 A selected few of those elements are summarized here. For each assessed element, the Manual highlighted good existing practices observed. The Atlanta Forum also formulated new recommended practices by combining or extrapolating from existing ones, based on the Forum members’ knowledge of the needs of survivors of domestic violence. While a few recommendations may be particular to Georgia based on idiosyncrasies of state law, most of the recommendations can be applied in any jurisdiction aspiring to improve victims’ experiences in the civil protective order court system.
1. Community Collaboration and the Role of Legal Advocates
Domestic violence service providers and courthouse personnel should partner to increase victims’ meaningful access to advocate services throughout the protective order process.30 Service providers and advocates should be physically available at the courthouse, accompany petitioners throughout the entire filing and ex parte process, discuss hearing preparation with petitioners, accompany petitioners to court hearings, and provide ongoing safety planning crisis counseling, emotional support, resource information, and referrals.31 Courthouse personnel should be familiar with available advocate services and refer all petitioners to those advocate services—not only petitioners who request help.
Victims should have access to, and contact with, legal advocates throughout the pendency of their cases. Advocates should maintain contact and communicate regularly with victims while the cases are pending, with a special emphasis made towards contact in the days leading up to their 12-month hearings.32
Legal advocates should also be present in the courtroom during 12-month hearings. Advocates should be permitted to sit with victims while waiting to present their case, especially those victims who may be pro se. Advocates should also request permission from the court to stand or sit with the victim during their hearing. Immediately following the hearing, regardless of the outcome, advocates should safety plan with the victim and ensure that they receive everything they need from the court, including a certified, file-stamped copy of any order that has been issued.33
2. Ex Parte Hearings
The ex parte hearing represents the petitioner’s first contact with the court itself. This process should be smooth and intuitive, and victims should be guided by an advocate and/or legal services attorney throughout. The court and advocates should be mindful of the possibility that an overly taxing procedure that burdens victims with significant paperwork or other pre-hearing requirements, or a schedule for hearings that is not timely or narrow or is difficult to navigate, can inadvertently make the court itself one more barrier to leaving an abusive relationship.34
Ideally, petitioners seeking a TPO should have 24-hour access to a superior court judge (or other designated hearing officer) for either an in-person ex parte hearing or one via video appearance.35 The Forum recognizes that this is an aspirational recommendation. However, many, if not all, Georgia jurisdictions have judges available around the clock to sign warrants for law enforcement, so the courts would seem to have a system and ready supply of judges working overnight and on weekends for emergency cases. If 24-hour access is not feasible, jurisdictions should have at least one judge or hearing officer available for ex parte hearings Monday through Friday during all traditional business hours.36 Judges should permit petitioners to appear at ex parte hearings via videoconference at any time if a petition is submitted electronically (e-filed).
Respondents should be served within 24 hours of the issuance of an ex parte order.37 Additional service priority should be given to cases where the parties are living together at the time the ex parte order is issued.38 Some jurisdictions allow petitioners to request a law enforcement escort home from the courthouse if the parties cohabitate, facilitating simultaneous service and removal of the respondent.
Sheriffs’ departments, or other law enforcement agencies authorized to perfect civil service, should have personnel or units dedicated to serving TPOs.39 Where jurisdictions do not have the resources for such personnel or units, or where the volume of TPO filings does not justify a stand-alone unit in that jurisdiction, there should be a designated point of contact within the serving department to monitor the status of service in TPOs.40 The unit and/or contact person should receive specialized training on TPOs, the dangers associated with them, and working with victims of domestic violence.41 It is key to remember, however, that even if a designated unit exists, any member of law enforcement can and should be willing to serve a TPO if necessary.
Deputies perfecting services should document the entire process and share the information with petitioners and/or their advocates upon request, even if that documentation is also sent to the court.42 The documentation should include information on how many service attempts were made, where and when service was perfected, and the respondents’ behavior during service.43 Deputies who perfect service should also provide respondents with standardized court information at the time of service, and petitioners should be notified immediately when respondents are served.44
If service is not completed before the 12-month hearing date, petitioners should not be required to appear in court.45 Legal advocates and sheriffs’ departments should communicate regularly about service of TPOs so that advocates can readily obtain the status of service from the designated unit or officer before the hearing.46 If service has not been perfected, advocates should affirmatively notify petitioners.47 If petitioners are pro se, advocates should also notify the court that petitioners will not be appearing at the hearing due to lack of service on the respondent.48 If the 30-day window for scheduling the 12-month hearing has not closed, courts should automatically reschedule the hearings within that window,49 continue the ex parte order, and renew the request for service. If petitioners do appear in cases where service has not been perfected, the court should call the calendar and address cases where service has not been made first, continue these cases where permissible, and excuse any petitioners who are present.50
If service has not been perfected within the 30-day statutory window, courts should request and have ready access to information on what service attempts have been made.51 Courts should also allow petitioners to make a statement, if they wish to do so, regarding whether or not they have personal knowledge that the respondent has been avoiding service.52 If any of this information supports a finding that the respondent has been avoiding service of the TPO, the court should continue the ex parte order for an additional 30 days and schedule a new hearing as permitted by statute.53
4. Attorney Referrals
Courts should have attorneys affiliated with a victim advocacy agency present at the courthouse to advise petitioners from the beginning of the filing process.54 If an attorney is not present at the courthouse, victim advocacy agencies assisting petitioners should partner with legal services agencies or trained volunteer attorneys who can provide telephone advice on urgent legal issues free of charge to victims.
As soon as possible after an ex parte order is granted, advocacy agencies should refer pro se petitioners to pro bono or legal services attorneys for representation at the 12-month hearings.55 Referrals should be made using documentation that authorizes agency advocates to share victims’ contact information and requests for representation directly to legal aid agencies, who would then initiate contact with the petitioners.56 Courthouses and advocacy agencies should also maintain a list of conflict attorneys or agencies available to consult with petitioners who cannot be advised by the primary attorney or agency due to any possible conflicts of interest.
5. Pre-trial Negotiations
Pursuant to Georgia’s rules governing alternative dispute resolution, mediation through traditional alternative dispute resolution methods is never appropriate for TPOs.57 However, other forms of formal pre-trial negotiation can be used successfully in intimate partner violence TPO cases where explicit guidelines for the negotiation are in place. Jurisdictions must begin by determining whether such negotiations may take place under the applicable rules for mediators. The Forum also noted that the potential for additional abuse and intimidation of victims through mediation is high, and therefore that a pre-trial negotiation program in TPOs must be undertaken with great care. The person facilitating the negotiation must be a neutral trained to address domestic violence and stalking.58 The neutral should have training and experience as a certified mediator and must have specific knowledge and training about the TPO process.59
In TPOs, participation in pre-trial negotiation must be completely voluntary. The parties must give informed consent to pre-trial negotiation prior to participating in the process. Both parties must be informed and must actively understand that they can end the negotiation at any point. Pre-trial negotiation should be conducted using a caucus, or “shuttling,” format, where the parties are completely separate and the neutral moves back and forth between them.60
Courts must also ensure that victims have access to an advocate and/or an attorney before and during the negotiation. Courts must thoroughly review any agreements reached by the parties to a protective order. Both parties must sign any final order issued pursuant to negotiation, whether that is a 12-month TPO or a dismissal order.61
6. 12-Month Hearings
Unless a negotiated resolution is reached before a hearing begins, all hearings should give both parties an opportunity to testify, present evidence, and tender witnesses on their behalf.62 Hearings should not be stopped by the court until all testimony, evidence, and witnesses have been considered.63 Courtroom deputies should be trained on TPO cases and the dynamics of domestic violence.64 Petitioners and respondents should be physically separated in the courtroom at all times.65
At the call of the calendar or at the beginning of any individually scheduled hearings, judges should announce that no party should leave the courtroom until they have received copies of any orders or dismissals and they have been released individually by the court.66 Parties should be reminded of this at the end of each individual hearing. When a hearing is concluded, regardless of the outcome, the petitioner should be released first. The respondent should be released after an amount of time sufficient to prevent contact between the parties as they leave the courthouse. Petitioners should be escorted out of the courthouse by deputies upon request.67
When issuing 12-month TPOs, courts should use their statutory authority to include other measures that improve the stability and safety of the parties’ separation. For example, where the parties share minor children, the 12-month TPO should include a temporary custody order subject to Georgia’s custody guidelines—that is, parenting time for the respondent should be granted “only if the judge finds that adequate provision for the safety of the child and the parent who is a victim of family violence can be made,”68 and the parenting time is in the child’s best interest.69 The court should also always order child support pursuant to the Georgia child support guidelines if there is not already an existing order.70 If any other matters would tend to protect the victim and support them financially and practically, the court should address them in the order because every way in which a victim is forced to depend upon their abuser is another reason that they may ultimately have no choice but to reconcile.
III. Georgia TPO Forum and Lessons Learned in a Pandemic
After presenting the Best Practices Manual in late 2019, the Atlanta Forum continued to meet and grow. The group added an increasing number of practitioners from outside the Atlanta area, including the Macon and Ocmulgee Circuits, the Blue Ridge Circuit, the Tifton Circuit, the Dougherty Circuit, the South Georgia and Southern Circuits, the Western Circuit, and the Northeastern Circuit. Members began referring to this as the Georgia TPO Forum (Forum), to more accurately reflect the statewide nature of its new focus. The Forum was already discussing the possibility of a second, more lengthy “road trip” to visit civil TPO courts around the state and expand upon the existing Manual in early 2020.
A. COVID-19 and Georgia Courts
On March 2, 2020, the Georgia Department of Public Health confirmed the first two cases of COVID-19 in the state.71 Georgia officials continued to espouse a list of “best practices” such as hand washing, avoiding close contact with people who are “sick,” and getting a flu shot.72 On Friday, March 6, a teacher serving two public schools in the Atlanta area fell ill and was transported to a hospital by ambulance.73 The following Monday afternoon, school officials first announced that the teacher had tested positive for COVID-19 and Fulton County Schools would be closed for one day so that the affected buildings could be cleaned.74 Four days later, the president declared a national emergency due to COVID-19.75
The next day—Saturday, March 14—the governor of Georgia declared a Public Health State of Emergency, citing the confirmation of more than 60 cases statewide.76 The Supreme Court of Georgia issued a companion Order Declaring Statewide Judicial Emergency “in order to protect the health, safety, and liberty of all citizens in this State.”77 The chief justice’s order stated that “courts should remain open to address essential functions,” including domestic abuse protective orders.78 It suspended a number of deadlines for litigants and courts.79 The whole order, including all its findings and stipulations, was barely over two pages long.80
Local circuits issued their own emergency orders, with a wide range of effects.81 Some courthouses began requiring masks to enter and limited the number allowed inside.82 Others closed the physical courthouse to the public entirely, while some remained open for civil matters with few or no changes to how the public accessed the court.83 Many could not have anticipated that these emergency measures would last more than a year; each one was therefore incremental and subject to change as the pandemic persisted.84
On Monday, March 16, regular operating hours resumed and advocates returned to work. Many Forum-member advocates and attorneys worked remotely, leaving courthouse offices empty. Others continued to report to courthouse offices in person, in places where the courts maintained their usual TPO procedures even amid the pandemic. Over the next few days, DV programs, courts, and law enforcement agencies developed means by which survivors could reach assistance and request protection. As with other matters of court administration in Georgia, however, every jurisdiction developed its own independent procedure. A constellation of phone access, videoconferencing, electronic documentation, remote notarization, and in-person appointments soon formed across the state. While no two jurisdictions had identical approaches, it did appear that everywhere in Georgia, victims of abuse had some way to request civil protective orders with little to no interruption.
B. COVID-19 and Domestic Violence in Georgia
Domestic violence agencies and advocates understood that during this time of increased uncertainty and stress, their services would be needed more than ever. In early April, the United Nations declared domestic violence a “shadow pandemic,” exacerbated by limited access to services, shelter-in-place requirements, and financial hardship.85 Georgia’s statewide stay-at-home order lasted from April 3 through May 1, though a number of municipalities issued longer orders.86 Unemployment claims spiked by more than 1,000% over the previous two years, setting a record high.87
Data from the Atlanta Police Department (APD) suggests that an increase in domestic violence started early in the pandemic. In March 2020, APD reported 79% more domestic violence cases than in March 2019.88 Georgia shelters likewise reported an increase in calls for assistance, even as social distancing requirements and funding cuts significantly limited their housing and staffing resources.89
Then, in late May, as victim assistance was approaching a loose sense of stability, widespread protests and civil unrest broke out following George Floyd’s murder on May 25 by law enforcement in Minneapolis, and tension grew between police and communities in many areas.90 Georgia’s own racially motivated killings, including Ahmaud Arbery and Rayshard Brooks, led to heightened tensions across the state.91 When the officer who shot Rayshard Brooks was charged, a “blue flu” swept through Atlanta.92 During the subsequent days and weeks, as many as half of APD’s field officers called in sick, leading to a public request by the chief of police that officers return to work.93 Amid this policing crisis, even as overall violent crime reports dropped, reports of domestic violence crimes continued to rise.94
C. Lessons Learned in a Pandemic
Against this backdrop, members of the Georgia TPO Forum met frequently by video. Advocates and attorneys shared their experiences, suggestions, and struggles throughout the pandemic, and continue to do so. As of June 30, 2021, Georgia’s statewide judicial emergency has ended95; however, civil protective order processes are a long way from pre-pandemic, and may never get back to “normal.” Many jurisdictions are still reckoning with backlogs in their cases, a decrease in available resources, and a level of need that continues to exceed that of pre-2020.
The Forum met more than 30 times from March 2020 through June 2021. New members were added continuously during the year, resulting in a more robust representation of the areas outside metro Atlanta. Members updated one another regularly on the widely varied public health protocols that respective courthouses introduced, including closure of the physical building, mask requirements, virtual hearings, and greatly expanded online services. This real-time network of information meant that advocates could advise their clients regarding other jurisdictions as well as their own, which is crucial in a state with 159 different superior courts where a survivor might need to pursue their case.96 This also allowed advocates to make informed suggestions to their own courts and judges about how their processes might be improved; an idea for improvement is much more persuasive if it is backed by another jurisdiction. The particularities of remote filing, access to a judge ex parte, service of process during a pandemic, and virtual hearings were perhaps the most-discussed aspects of victims’ access to the courts, and so are the areas described here.
Forum members also shared strategies for continuing to offer services while maintaining their own safety and those of their colleagues and families. Phone and videoconferencing platforms were discussed and debated. Victories and struggles were shared. Serving survivors of domestic violence may have never been more stressful than at the beginning of the COVID-19 pandemic. For many members, the Forum provided one of those rare senses of community and commonality at a moment when most felt more isolated than ever.
As a natural result of the spirited discussions among passionate advocates and attorneys, trends began to emerge, and the group reached consensus on a number of issues. The group has agreed to produce a training session, and perhaps a subsequent manual, on Lessons Learned in a Pandemic. A new concept of a “best practice,” the Lessons Learned will not truthfully be a series of recommendations about how TPOs should be handled during COVID-19; indeed, the Forum hopes that such recommendations will not be needed for much longer. But the advocates, attorneys, and courts have learned a great deal about emergency preparedness, alternative court processes, and creative solutions that can improve access to the courts for abuse victims moving forward. What follow are summaries of some of those lessons.
1. Filing TPO Petitions and the Role of the Legal Advocate
With the COVID-19 pandemic came many challenges for both victims seeking TPOs and advocates aiding in the process. Pre-pandemic, in most jurisdictions, advocates were available on site either at the courthouse or at an office or shelter staffed by the domestic violence agency, and victims could meet with them on demand and in person. During the pandemic, the national, state, and local public health measures in most jurisdictions created circumstances where victims had less direct access to advocates, and therefore advocates were less involved in TPO cases. However, advocacy programs that developed a strong virtual assistance model found themselves in a position to assist even more victims than prior to the pandemic.
Among Georgia’s 49 judicial circuits, the wide range of responses to COVID-19 led to inconsistencies in how courts handled TPO petitions, and in turn, how those cases were worked by advocates. While some jurisdictions created new and innovative solutions for completing and filing TPO petitions, the COVID-19-related restrictions in other jurisdictions led to decreased access to advocate assistance. In communities where a “do-it-yourself” model was adopted, victims were often left to navigate the TPO process alone or with limited advice from an advocate over the phone or via email.
The Forum has found that assistance from an advocate in any manner is preferable to victims navigating the process alone, but victims benefit more from face-to-face interaction with an advocate. In an ideal scheme, courts would allow for petitioners to access an advocate or attorney over Zoom or another teleconferencing platform while completing the petition. During COVID-19, this ensures social distancing and other public health protocols are followed, while allowing the victim to connect to an advocate for ongoing support. This system can continue after COVID-19 as a way for agencies who serve multiple jurisdictions, especially in rural areas and where resources are sparse, to offer real-time assistance to victims in more than one location. Further, prior to COVID-19, if a victim found that their safest option was to escape the jurisdiction, they had to choose to either flee to safety or petition the courts for protection.97 However, if remote assistance is available, a victim can petition the court from a safe location and remain separated from their abuser.
A note on e-filing: Georgia required electronic filing (e-filing) of all civil cases beginning January 1, 2019, forbidding clerks from accepting any paper filings from attorneys and requiring that civil actions be indexed and available through an online filing system.98 Though onerous for courts at the time, this prescient legislation helped create a framework that made it easier for courts to abruptly limit in-person filing in March 2020. TPO petitions are expressly exempt from the e-filing requirement because they are almost always filed pro se and are presented to the court ex parte.99 However, COVID-19 led to an increase in e-filed TPO petitions, whether courts encouraged them or not.
While e-filing seems practical and effective, in some jurisdictions, e-filing meant that TPOs were not met with the same sense of urgency as they were prior to the pandemic. E-filed TPO petitions found themselves in a queue with filings from any other civil case heard by the receiving court—including divorces, custody matters, land title disputes, all cases brought in equity, and de novo appeals from magistrate or state courts.100 With such a variety among case types, it is no wonder that court staff were not readily equipped to screen out the TPO petitions as emergencies. Therefore, going forward, if e-filing is used for TPO petitions, it is absolutely essential that the receiving clerk’s office is prepared to flag those filings for immediate ex parte review by a judge. Attorneys and advocates should likewise be prepared to affirmatively contact the court at the same time as a petition is e-filed, to ensure it is addressed in a timely fashion.
2. Ex Parte Hearings
Prior to the COVID-19 pandemic, an ex parte hearing would typically be scheduled either the same day a petitioner presented to request a TPO or within one business day afterward. While the statute has no such requirement, most jurisdictions seemed to have this practice in place, and the statutory expectation that the second hearing be held within 10 days of the petition’s filing suggests the extreme urgency of the initial ex parte hearing.101 During COVID-19, Georgia’s courts handled ex parte hearings in various ways: Some continued to require petitioners to appear in person at the courthouse as normal; some required petitioners to appear virtually, and turned them away if they appeared in person; and some used a hybrid approach, including by providing technology for in-person petitioners to appear remotely before judges who, themselves, were working offsite.
Overall, the Forum has found virtual ex parte hearings to work well and be victim-friendly. In fact, virtual ex parte hearings have allowed victims to attend court without facing many of the barriers they did prior to the pandemic, such as lack of transportation, lack of childcare, and inability to take time off of work. This approach has two downsides, however: access to technology and time constraints.
Virtual hearings can be challenging for victims with limited access to, or difficulty navigating, the technology that is necessary to log in to remote hearings, including a strong wireless network or a web camera. Resources permitting, advocates or the courts may be able to arrange for victims to use their equipment in a safe location to access the hearing, including at secure offsite places such as a police station or public library. This will vary, however, based on individual court and agency protocols and availability. Advocates agree that virtual ex parte hearings post-pandemic would be a benefit to victims for whom the multiple court hearings related to a TPO represent a significant hardship, and sometimes an absolute barrier to completing the process. However, an in-person option for victims who face technology issues should be maintained; if courts do not provide the in-person mechanism, then local agencies should try to close the gap.
Finally, many jurisdictions have found it necessary for petitioners to schedule a time in advance to complete the ex parte hearing. This can be impractical for those who are fleeing danger at home. At times when many petitioners are requesting TPOs, it can also result in a backlog, where the predetermined number of appointments fill up for the day and new applicants must be rolled over to the following day. During the pandemic, some jurisdictions saw delays of several weeks because of such backlogs—leaving a victim to wait at home with their paperwork, possibly in the same house as their abuser.
In Georgia, although the statute does not require a strict timeline, the Forum suggests that all ex parte hearings take place within 48 hours of the petitioner’s request for one, whether in person or virtually. Advocates and attorneys should be aware of possible scheduling issues when coordinating virtual hearings with courts, strongly advocate for the earliest possible ex parte hearing, and emphasize safety planning and other practical measures if the victim must wait. Both practitioners and judges may also note that Georgia law simply states that a judge review the petitioner’s sworn statements and determine whether to order relief; therefore, judges have the authority to issue temporary ex parte orders based solely on the pleadings.102 Multiple jurisdictions in Georgia now commonly approve TPO petitions without a hearing, allowing judges to review many more cases per day than otherwise and significantly limit how long a victim must wait for a court response.
3. Service and Notice of Hearing
As noted above, service of the petition and ex parte order upon the respondent is required before the order can be effective, and the ex parte order is also traditionally the notice of hearing.103 When the first judicial emergency orders were issued in mid-March 2020, some courts did not immediately plan for sweeping changes to the entire TPO process and continued scheduling 12-month hearings as usual. When the emergencies and courthouse closures continued for the next several months, complicated by instances of staff out of work due to quarantine and positive COVID-19 tests, many 12-month hearings statewide did not take place as planned.104
Even knowing that the hearings would not take place, some courts issued ex parte orders with a specific court date as a placeholder, intending to continue the case to a later date once a procedure was in place. Often, however, those continuances were not forthcoming, and these cases were left in a sort of limbo. Law enforcement and other court officials sometimes thought that the order had automatically expired after 30 days, as the statute provides—not realizing that judicial emergency orders kept ex parte orders in place during COVID-19.
Serving a respondent with a placeholder court date presented another new problem where the parties lived together. If an ex parte order is entered that grants the parties’ joint residence to the petitioner only—a common scenario—then when the respondent is served, the respondent must vacate the premises immediately. From this point on, neither the petitioner nor the court has a way of knowing where the respondent is residing, in order to serve a new hearing notice once the court is ready to proceed with the case. Moreover, many courts were not able to keep up with the volume of phone calls received by their administrative offices, and parties did not know how to notify the court of any new or changed contact information. Some courts began to notify parties of new hearing dates by email, if an email address was available; but many times, the parties did not know to expect court notices by email, and unknowingly missed future court notices. In many cases, after months of waiting, petitioners missed their court date and their petitions were dismissed.
With regard to these issues, the culprit was the constantly changing forecast of COVID-19’s progress, and uncertainty as to how long court procedures would be affected. In hindsight, the solution is clear. In contemplation of any judicial emergency or other special circumstance, all courts, agencies, and legal services programs should develop a comprehensive emergency procedure now that can immediately take effect in the event of another emergency. Thereby, courts and victim assistance programs can eliminate the uncertainty that results from trying to develop these procedures in real time, as the emergency is changing around them.
Courts (and advocates) must also collect, up front, as much contact information from the parties as practicable from the very beginning of the case, and create notices that inform the parties of their affirmative duty to update contact information with the court. Courts can accomplish this with forms that are offered to petitioners upon filing and to respondents upon service. Advocates and attorneys should plan to inform the court in writing—preferably in a court filing—of any new contact information for either party.
Finally, all law enforcement must be immediately trained on the effect of a judicial emergency order on TPOs. Although some jurisdictions attempt to delegate TPO enforcement to one department or agency, e.g., the sheriff’s office, the reality is that any law enforcement officer must be prepared to interpret and enforce a TPO at any time.105 Noting again that in times of uncertainty and stress, domestic violence will only increase, all law enforcement should receive specific instructions regarding the enforceability of TPOs during any future emergency.106
4. Attorney Referral and 12-Month Hearings
Virtual hearings present additional challenges for pro se petitioners. Further, the support that advocates and attorneys would normally provide in person can be very difficult to provide remotely. For example, an advocate might be able to have confidential conversations with the petitioner right before and right after the hearing, and stand with them during the hearing, if it were in person. Over videoconference, private conversations are logistically quite challenging. Furthermore, the procedure for connecting to the various different videoconference platforms and submitting evidence electronically can be quite cumbersome to navigate on top of the pressures of a victim representing themselves against their abuser before a judge. Any written instructions should be detailed and easy to read and follow.
From this, the Forum suggests two takeaways for contested hearings by videoconference. First, advocates or the court should consider offering a separate onsite area set up with a computer for victims to connect more seamlessly to the hearing. If this is not possible, advocates should always plan to make contact prior to the hearing, both to make sure the victim understands the substantive matters in the hearing and to ensure the victim is adequately prepared to connect to the court’s online system.
Second, referrals to legal services or volunteer attorneys are all the more crucial for remote hearings. Attorneys can facilitate evidence submission and help ensure that victims have access to required technology. As an additional benefit, where both parties to a TPO are represented, the attorneys can engage in pretrial negotiations to determine whether any elements of the case may be settled without a hearing.
On the whole, however, the Forum hopes that 12-month hearings will return to an in person format as soon as practicable. In contrast to ex parte hearings, which are well suited to videoconference, a contested hearing has enough challenges that they outweigh the advantages in most cases. Courts can maintain their systems for remote 12-month hearings for use upon motion by one of the parties; for example, if one party is not within the jurisdiction, cannot appear due to health problems, or is in hiding from their abuser.
The most challenging part of the COVID-19 pandemic for legal systems has been the uncertainty and the constantly changing landscape of information about the disease. The majority opinion timeframe for emergency measures seemed to fluctuate from weeks, to months, to years or indefinitely. Courts and their adjacent support systems, such as law enforcement, victim advocacy agencies, and legal services, had to scramble to create new processes with little clear knowledge of how long they would need to last. But COVID-19 was not the first emergency to affect U.S. courts, and it will not be the last. Every stakeholder for protection of domestic violence survivors must take stock now of what happened, what worked, and what did not. Then, they should create a plan for next time, and ensure that it is ready to be implemented if similar circumstances should arise.
When undertaking such a project, we cannot emphasize enough how much better and easier it will be if done as a group. The Georgia TPO Forum has provided its members with invaluable and irreplaceable practical advice, group problem solving, and camaraderie among highly dedicated practitioners. Forum members were not instructed or given permission to organize; we simply did. We strongly encourage all victim advocates and attorneys to seek out other highly motivated individuals locally, to bounce ideas off one another and find problems and solutions in common. The result will improve the working lives of everyone who commits to the group, and the personal lives of innumerable others whom they serve.
1. Throughout, this article will use “survivor” and “victim” interchangeably. The authors recognize that “survivor” is preferred by some as an empowering term; on the other hand, many courts and laws use “victim” as a term of art. Similarly, we acknowledge the common use of “she” to refer to victims and “he” to refer to abusers, as a reflection of the inherently gendered nature of domestic violence. We have chosen, however, to use a singular “they” to represent both parties. In both these matters, our intention is to use language that is both clear and inclusive.
2. Unless otherwise noted, the information in this article is based on the collective knowledge and experience of the authors in working with domestic violence victims in Georgia and practicing in Georgia’s courts.
3. Ga. Code Ann. §§ 19-13-1 to 19-13-6.
4. Id. § 19-13-4(c).
5. Id. §§ 19-13-4 (family violence TPOs), 16-5-94 (stalking TPOs), 34-1-7 (employer TPOs), 19-13A-4 (effective July 1, 2021) (dating violence TPOs). Family violence TPOs are characterized by a qualifying family relationship, such as current or former spouses, those who currently or formerly lived together, parents of the same child, parent and child, etc. Id. §§ 19-13-1, 19-13-4. Stalking TPOs do not have a relationship requirement but instead must involve the criminal offense of stalking. Id. § 16-5-94. Dating violence TPOs are very new and essentially untested by the authors as of the date of this writing.
6. Id. §§ 19-13-4, 16-5-94, 34-1-7, 19-13A-4.
7. Id. § 19-13-3.
8. Id. See also Family Violence/Protective Order Forms for the State of Georgia, Ga. Sup. Ct. Clerks’ Coop. Auth., https://www.gsccca.org/file/family-violence-forms.
9. Loiten v. Loiten, 655 S.E.2d 265, 268 (Ga. Ct. App. 2007).
11. Ga. Code Ann. § 19-13-3(c).
13. Id. § 19-13-4(c).
14. Id. § 19-13-4(a).
15. Id. § 19-13-3(d).
17. For a lengthier discussion of an abuser’s deliberate isolation of a victim from friends, family, and other community supports, as well as the financial abuse that would make a victim unable to pay for their own legal defense or other costs of litigation, see Joan Prittie & Nancy Hunter, Georgia Domestic Violence Benchbook A:5–A:8 (14th ed.), https://www.law.uga.edu/icje/14thDVBB.pdf.
18. Ga. Comm’n on Fam. Violence & Ga. Coal. Against Domestic Violence, Georgia Domestic Violence Fatality Review Project 2018 Annual Report 67 (2018), http://georgiafatalityreview.com/reports/report/2018-report/.
19. Metro Atlanta TPO Forum, TPO Court Road Trip: Best Practices Based on Observation and Experience 3 (2019).
25. Ga. Comm’n on Fam. Violence, 2019 Annual Family Violence Conference 7(2019), https://gcfv.georgia.gov/events/2019-09-08/annual-family-violence-conference (Workshops Descriptions).
26. Beverly Balos et al., Nat’l Ctr. on Prot. Orders & Full Faith & Credit, Engaging in a Best Practice Assessment of the Civil Protection Order System (July 2012), https://www.bwjp.org/assets/documents/engaging-in-a-best-practice-assessment-of-the-civilp.pdf.
27. Id. at 3–4.
29. Metro Atlanta TPO Forum, supra note 19. The elements are (1) involvement of advocates during and after filing the petition for protective order, (2) the ex parte hearing, (3) language access plans, (4) service of petitions and ex parte orders, (5) attorney referrals for pro se petitioners, (6) the role of nonattorney advocates before and during the 12-month hearings, (7) counterclaims/counter-petitions, (8) 12-month hearings, (9) family violence intervention programs, (10) legitimation of children of unmarried parents, (11) alcohol and drug evaluations, (12) child support, (13) mediation and pre-trial negotiation, (14) petitioners’ motions to dismiss, (15) firearms surrender and retrieval, (16) motions to extend 12-month orders, (17) post-judgment motions, (18) e-filing and e-service, and (19) training for judges.
30. Id. at 4.
34. Id. at 5.
37. Id. at 6.
44. Id. at 7.
53. Ga. Code Ann. § 19-13-3(e) (2018).
54. Metro Atlanta TPO Forum, supra note 19, at 8.
57. Rules for Mediation in Cases Involving Issues of Domestic Violence, Ga. Sup. Ct. Alternative Dispute Resolution Rules, App. D, at 4, https://godr.org/wp-content/uploads/sites/5/2021/05/Appendix-D-5.5.21-1.pdf.
58. Metro Atlanta TPO Forum, supra note 19, at 14.
62. Id. at 10.
68. Ga. Code Ann. § 19-9-7 (emphasis added).
69. Id. § 19-9-3.
70. Id. § 19-6-15.
71. Press Release, Ga. Dep’t of Pub. Health, Gov. Kemp, Officials Confirm Two Cases of COVID-19 in Georgia (Mar. 2, 2020), https://dph.georgia.gov/press-releases/2020-03-02/gov-kemp-officials-confirm-two-cases-covid-19-georgia.
73. Fulton County Schools Teacher Tests Positive for Coronavirus; Schools Closed Today, WSB-TV (Mar. 9, 2020), https://www.wsbtv.com/news/local/fulton-county/fulton-county-schools-employee-tests-positive-covid-19-schools-immediately-dismissed/LHEUGLSZLNAIHBPBDVSSQKV23E/.
75. Franco Ordoñez et al., President Trump Declares National Emergency as Coronavirus Pandemic Grows, NPR (Mar. 13, 2020), https://www.npr.org/2020/03/13/815420295/trump-to-discuss-coronavirus-amid-growing-crisis-scrutiny-of-his-response.
76. Ga. Exec. Order No. 3-14-20-01 (Mar. 14, 2020), https://gov.georgia.gov/document/2020-executive-order/03142001/download.
77. Ga. Sup. Ct., Order Declaring Statewide Judicial Emergency (Mar. 14, 2020), https://www.gasupreme.us/wp-content/uploads/2020/03/CJ-Melton-amended-Statewide-Jud-Emergency-order.pdf.
81. On June 11, 2020, the Judicial Council Strategic Plan Standing Committee presented guidance for the reopening of courts in Georgia. The “guiding principles” included “[R]educe the transmission of COVID-19 among court employees and the public[;] Maintain healthy court operations and facilities for the public[;] [M]aintain a healthy work environment for court employees[; and] Exercise flexibility when applying these guidelines to ensure each litigant receives a fair hearing as required by law.” This guidance noted that these principles “could be applied to all courts and adjusted . . . to meet the unique needs of each court.” Jud. Council Strategic Plan Standing Comm., Georgia Court Reopening Guide (2020), https://georgiacourts.gov/wp-content/uploads/2020/06/Georgia-Court-Reopening-Guide-FINAL.pdf. Specific recommendations included requiring masks, restricting room capacity, and maintaining social distancing, among others. Id.
82. For a list of local courts’ emergency orders, see Emergency Judicial Orders, Jud. Council of Ga., https://georgiacourts.gov/emergency-judicial-orders/ (last visited July 5, 2021).
84. Id. To revisit public confusion about how long COVID-19-related closures might last, see Amelia Nierenberg, How Long Will the Coronavirus Outbreak and Shutdown Last?, N.Y. Times (Mar. 16, 2020), https://www.nytimes.com/2020/03/16/health/coronavirus-shut-down.html (“[T]he prevailing optimistic guess among experts for when the outbreak will abate hovers at about two months.”); Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Briefing, Trump White House Archives (Apr. 1, 2020), https://trumpwhitehouse.archives.gov/briefings-statements/remarks-president-trump-vice-president-pence-members-coronavirus-task-force-press-briefing-15/ (strongly implying an end to the worst parts of the pandemic after two weeks); Megan Scudellari, How the Pandemic Might Play Out in 2021 and Beyond, Nature (Aug. 5, 2020), https://www.nature.com/articles/d41586-020-02278-5#ref-CR1 (“June 2021 . . . intermittent lockdowns are the new normal. . . . An estimated 250 million people have been infected worldwide, and 1.75 million are dead.”). As of November 8, 2021, there were more than 249 million infections worldwide and more than 5 million deaths. WHO Coronavirus (COVID-19) Dashboard, World Health Org., https://covid19.who.int (last visited Nov. 8, 2021).
85. Phumzile Mlambo-Ngcuka, Violence Against Women and Girls: The Shadow Pandemic, U.N. Women (Apr. 6, 2020), https://www.unwomen.org/en/news/stories/2020/4/statement-ed-phumzile-violence-against-women-during-pandemic.
86. Adina Solomon, Some Georgia Mayors Bristle over Governor’s Decision to Lift Restrictions Amid Pandemic, U.S. News & World Rep. (May 4, 2020), https://www.usnews.com/news/cities/articles/2020-05-04/some-georgia-mayors-bristle-over-gov-brian-kemps-decision-to-lift-stay-at-home-order.
87. Kathleen Sturgeon, GA Unemployment Claims Hit Record High, How to File: Corona-virus, Patch (Apr. 16, 2020), https://patch.com/georgia/woodstock/ga-unemployment-claims-reach-record-high-march-coronavirus.
88. Asia Simone Burns, Stay at Home Order Poses New Problems for Family Violence Victims, Shelters, Atlanta J.-Const. (Apr. 28, 2020), https://www.ajc.com/news/breaking-news/stay-home-order-poses-new-problems-for-family-violence-victims-shelters/HKeZoZvHJIoKVzi8fI7okO/.
89. Id. For example, where a shelter might have previously used one room to house multiple households together, social distancing generally required each family to have its own separate room.
90. Derrick Bryson Taylor, George Floyd Protests: A Timeline, N.Y. Times (Nov. 5, 2021), https://www.nytimes.com/article/george-floyd-protests-timeline.html.
91. Justin Glawe, “It’s Time to Fight Back”: Rayshard Brooks’ Death Prompts Calls for Overhaul of Atlanta’s Police Department, Guardian (June 15, 2020), https://www.theguardian.com/us-news/2020/jun/15/rayshard-brooks-death-atlanta-police-defund.
92. Sean Keenan, A Closer Look at the “Blue Flu”: More Than Half of Atlanta’s Beat Cops Missed Work After Ex-officer Charged with Murder of Rayshard Brooks, Saporta Rep. (July 6, 2020), https://saportareport.com/a-closer-look-at-the-blue-flu-more-than-half-of-atlantas-beat-cops-missed-work-after-ex-officer-charged-with-murder-of-rayshard-brooks/sections/reports/seankeenan/.
93. Lisa Hagen, Interim Police Chief Asks Atlanta Officers to Return, as Some Call Out Sick, WABE (June 20, 2020), https://www.wabe.org/interim-apd-chief-implores-atlanta-officers-to-return-as-police-call-out-sick/.
94. Dabney P. Evans et al., Domestic Violence in Atlanta, Georgia Before and During COVID-19, 8 Violence & Gender 140, 142–43 (2021), https://liebertpub.com/doi/10.1089/vio.2020.0061.
95. Emergency Judicial Orders, supra note 82.
96. Overview of the Superior Court of Fulton County, Super. Ct. of Fulton Cnty., https://www.fultoncourt.org/about/about.php.
97. A TPO must be filed in the county where the respondent resides, so a victim of abuse has to file with the courthouse that is closest to their abuser. Ga. Code Ann. § 19-13-2(a).
98. Id. § 15-6-11(b).
99. Id. § 15-6-11(b)(3)(A)(iii).
100. Of all the Georgia jurisdictions, only one—Fulton County, which includes Atlanta and is the most populous county in Georgia—has a separate Family Division to hear domestic relations cases only. See 2020 Census Count by Georgia County Population (Aug. 12, 2021), https://www.legis.ga.gov/api/document/docs/default-source/reapportionment-document-library/2020-count-by-county-population--with-2010.pdf?sfvrsn=cbc99191_2; Family Division General Information, Super. Ct. of Fulton Cnty., https://www.fultoncourt.org/family/family-generalinfo.php (last visited Dec. 1, 2021). Everywhere else, the superior court has original jurisdiction in all cases, except a small number of exempt categories heard by state or magistrate courts. Ga. Const. art. VI, §§ III, IV.
101. Ga. Code Ann. § 19-13-3(c).
102. Id. § 19-13-3(b).
103. Ga. Code Ann. §§ 9-11-4 (service of petition), 9-11-5 (service of ex parte order); Family Violence/Protective Order Forms, supra note 8.
104. For examples of courthouse staff testing positive, see Jan Skutch, Chatham County Recorder’s Court Closed After Two Positive COVID-19 Tests, Savannah Morning News (July 14, 2020), https://www.savannahnow.com/story/special/2020/07/14/chatham-county-recorderrsquos-court-closed-after-two-positive-covid-19-tests/114874484/; Leon Stafford, Clayton Closes Courthouse, Quarantines Staff After COVID-19 Outbreak, Atlanta J.-Const. (Apr. 9, 2020), https://www.ajc.com/news/local/clayton-closes-courthouse-quarantines-staff-after-covid-outbreak/y9ADA9Sd5Jbcq78HUfh4JN/; R. Robin McDonald, Courthouses Close Anew as Staff, Judges Test Posi-tive for COVID-19, Daily Rep. (July 9, 2020), https://www.law.com/dailyreportonline/2020/07/09/courthouses-close-anew-as-staff-judges-test-positive-for-covid-19/?slreturn=20210607091009.
105. On its face, an ex parte TPO or 12-month TPO is enforceable in every county throughout the state by every court and law enforcement official. See Ga. Unif. Rules Sup. Ct. Form SC-15 (Family Violence Ex Parte Protective Order) ¶ 2, https://www.gsccca.org/docs/family-violence-documents/sc-15_family_violence_ex_parte_protective_order.pdf?sfvrsn=a964fd4d_2 (“[I]t shall be the duty of every court and every law enforcement official to enforce and carry out the provisions of this Order. . . .”).
106. See supra notes 85, 88, and 89.